Property orders time limit does not apply to couple divorced overseas

In Australia, married parties must settle their property interests prior to the 12-month anniversary of their divorce. They can be settled by way of a consent order or Binding Financial Agreement, and where an agreement cannot be reached, an application must be commenced in Court for property orders.

In the event that property proceedings are not commenced within 12 months of a Divorce Order, it is necessary to seek leave of the Court to hear the matter “out of time”, which is not guaranteed and adds to the expense of litigation.

While overseas divorce is recognised by the Australian Courts, it is not factored into the 12-month statutory period which applies only to a Divorce Order obtained in Australia.

The case of Anderson & McIntosh [2013] FamCAFC 200 recently explored this issue in the Full Court of the Family Court of Australia. The couple, both of whom were Australian citizens and were married in Australia, obtained a divorce in a foreign country. A property order was made in the foreign country but only dealt with the property within that jurisdiction. As there was property in Australia, however, the wife applied for an order from the Family Court of Australia to deal with the Australian property of the marriage. But this occurred more than two years after the foreign divorce order.

The husband argued in the Family Court proceedings that the wife should not be entitled to make an application for the distribution of the Australian property as she was outside of the statutory limit to institute property proceedings in Australia. But the trial judge found in favour of the wife, making the distinction between the words “Divorce Order” which he found only applied to the meaning within the Family Law Act 1975; and “divorce” which applied more generally. The husband’s appeal was dismissed by the Full Court and the first instance decision upheld.

Streeterlaw Family Law Accredited Specialist Simone Green said this case demonstrates that the 12-month time limit regarding property orders only applies to divorces finalised in Australia. “While overseas divorce is recognised by the Australian Courts, it is not factored into the 12-month statutory period which applies only to a Divorce Order obtained in Australia,” she said.

“So in the event that you obtain a divorce overseas and have property in Australia, you may have more time to settle your property interests but we advise that it should be finalised as soon as possible following the granting of the overseas divorce to avoid complications and potential delays in the Australian Courts.”